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Dress Codes and Discrimination

30th June 2011

One frequently thorny issue in the workplace is the application of a dress code. Employers are entitled to have a workplace dress code for their staff. Obviously if a certain role requires an employee to wear a certain uniform for health and safety reasons it will be clear that a failure to wear the correct uniform or equipment will justify disciplinary action, and will be unlikely to result in an allegation of unlawful discrimination so long as it is comprehensively applied.

Problems however have occurred in workplaces where the uniform required by the employer does not have a clear health and safety imperative, but is part of the company image, or professional image that the employer requires.

A recent case in the High Court, SGv St Gregory's Catholic Science College, although being about a student, has implications for employers in considering the legality of their dress codes. 

This case concerned a student that wanted to wear cornrows in his hair. The school objected to this. In turn the student challenged the legality of the dress code under sex discrimination and race discrimination law. 

The student, a boy, challenged the school's refusal to allow the cornrows in part on the basis that the school did allow girls to wear their hair in cornrows, but did not allow boys to do so. The boy, who had an Afro-Caribbean ethnicity also challenged the school's policy on the basis that it was discriminatory against him because there was a family tradition and cultural tradition in his ethnic group that males wore their hair in cornrows. The school argued that the policy was necessary in suppressing gang culture, and to make an exception for the cornrows would undermine the whole policy. The student argued that the policy resulted in an ethnic group being disadvantaged, to which he belonged, and that the policy was therefore "indirectly" discriminatory towards him.

A particular collection of cases, which largely date from the 1990s deal with challenges to employers' dress codes under discrimination law. In 1996 the Court of Appeal gave a ruling in the case of Smith v Safeway, which indicated that employers were entitled to apply different dress codes to male and female staff, so long as the dress codes enforced a common principle of smartness or a conventional standard of appearance for both men and women. This means that employers are entitled to impliment dress codes that prescribe different forms of dress for men and women so long as they are as a whole applying standards  that are equally conventional for men and women. On this basis in the current case the Court of Appeal ruled that the School's policy was not discriminatory towards the student on the grounds of his sex. The Court ruled that as a whole the policy in question applied a conventional standard across both male and female students.

On the race discrimination claim the court noted that the student came within a group that was disadvantaged by the policy. The court ruled that the student therefore met the required threshold of suffering a particular disadvantage under the policy as he was not allowed to attend the school wearing cornrows. The court was not convinced that the school's view that the exception of allowing this student to wear his hair in cornrows would undermine the whole policy. It would be possible to clearly establish grounds for an exception from the policy with conformity required unless impossible. The court accepted that an exception could be made where there was a clear cultural and family practice of males not having cut hair, and of wearing cornrows. 

This case illustrates the fact that employers cannot always uphold their dress policies with the argument that making an exception would undermine the whole policy. Employers should give careful consideration to the reasons given by the individual for not conforming to the dress code, and be prepared to enquire into the reasons given by the individual for not wanting to comply.

At Hallett Employment Law Services we can provide you with advice on implementation of a dress code and the legality of any such dress code. If you require any assistance on any matter raised in this article please do not hesitate to contact us.           

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